Beam v. Foltz

• Decision Date: 10 November 1987
• Docket Number: Nos. 86-1596,86-1642,s. 86-1596
• Citation: 832 F.2d 1401
• Parties: Gary Wayne BEAM, Petitioner-Appellee, Cross-Appellant, v. Dale FOLTZ, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1401

832 F.2d 1401

Gary Wayne BEAM, Petitioner-Appellee, Cross-Appellant, v. Dale FOLTZ, Respondent-Appellant, Cross-Appellee.

Nos. 86-1596, 86-1642.

United States Court of Appeals, Sixth Circuit.

Argued April 21, 1987.

Decided Nov. 10, 1987.

Kim Robert Fawcett, argued, Asst. Defender (State App.), Detroit, Mich., (Court-appointed), for Beam.

Rosemary A. Gordon, argued, Detroit, Mich., for Foltz.

Before MERRITT and NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge.

DAVID A. NELSON, Circuit Judge.

This is a habeas corpus case in which the petitioner, whom a Michigan jury found guilty of a series of interrelated crimes, raises three issues: (1) prosecutorial misconduct during final argument, (2) ineffective assistance of counsel, and (3) double jeopardy. A federal district court granted habeas corpus relief as to the double jeopardy claim, but rejected the petitioner's other arguments. The petitioner has appealed, and the respondent (warden of the prison where the petitioner is incarcerated) has cross-appealed. We do not consider the double jeopardy claim meritorious, and the judgment in favor of the petitioner on that issue will be reversed. The judgment denying relief on the other issues will be affirmed.

* * *

The State of Michigan tried the petitioner, Gary Wayne Beam, on charges of first-degree criminal sexual conduct, armed robbery, and possession of a firearm at the time of commission of a felony. The complainant was a young woman who worked the midnight shift at a convenience store in a Detroit suburb. She testified that sometime after 2:00 a.m. on December 4, 1980, a man she subsequently identified as the petitioner came into the store, got a bottle of Pepsi Cola and brought it to the counter, put his hand inside his jacket, and pulled out a black handgun. The complainant testified that the man "put the gun to my waist, put his arm around my neck and said 'You're coming with me, Lady.' " With the gun pointed at her waist and the man's arm around her throat, the complainant was taken out of the store and into some nearby woods. There, as she tearfully told the jury,

"He told me I had to give him my love. He told me to take down my pants, I told him I couldn't. He put the gun to my belly, told me I had to.

Q. Then what happened?

A. He raped me."

Next, the complainant testified, the rapist told her to get dressed and asked her how much money was in the store's cash register. "I told him 20 or $30, and that he could have it if he didn't hurt me." They returned to the store and the complainant opened the cash register and turned over all the money that was in it. When asked why she did so, she testified "[b]ecause he had a gun held on me."

The complainant called the police after the man had left the store. She was able to give the police a description, and she assisted a detective in making a composite drawing of the man. The police had her look at several hundred photographs, and she picked out Mr. Beam's as depicting her assailant. Mr. Beam was put in a police lineup; the complainant identified him there, and subsequently identified him in court, as the man who had raped and robbed her at gunpoint. "There's no doubt in my mind," she testified, that he was the man.

Mr. Beam's lawyer told the jury, in opening statement, that "we have no doubt whatsoever about the commission of these crimes;" the defenses were that Mr. Beam was a victim of misidentification and that he had an alibi, having been with his fiancee at the home of a Mr. and Mrs. Brown on the night the crimes were committed. Mr. Beam so testified, and although there were some discrepancies in the corroborating testimony, the Browns and the fiancee did offer testimony supporting the alibi. Fingerprints on an unopened Pepsi Cola bottle found at the scene of the rape did not match Mr. Beam's, moreover, and although the complainant testified that her assailant had no moustache, there was testimony that Mr. Beam did have a moustache.

The opening statement of petitioner Beam's lawyer anticipated prosecution evidence that the petitioner's blood type matched that of the rapist. Attempting to capitalize on the fact that the scientific tests performed by the state were not as comprehensive as they might have been, petitioner's counsel told the jury:

"You're also going to hear that the blood type matched. However, you're going to hear it was O Positive Blood, and it's better than half the population, you'll be told, that has O Positive Blood. And I'm asking you to pay close attention to this part of the testimony because there are very, very sophisticated tests available where they can show within 1% of the population, to exclude somebody as a Defendant.... [W]e're going to show that these tests were not made, that they were perfectly within the realm of feasibility to have been made, and that it was the prosecution's duty to have made these tests, and in fact use the latest scientific developments to arrive at the truth in this case."

The evidence presented by the prosecution did show that Mr. Beam's blood type matched the rapist's, and that certain tests that might have narrowed the field of suspects were not performed. A witness from the state police crime laboratory, Charlotte Day, testified on direct examination that she had analyzed samples of the complainant's clothing and bodily fluids, as well as samples of blood, saliva and hair from petitioner Beam. Mrs. Day testified that in about four cases out of five, an individual's blood type can be determined from other bodily fluids; that such individuals are called "secretors;" that analysis of seminal fluid obtained from the complainant's clothing and vaginal swabs taken after the rape established that the rapist was a secretor with type O blood; that 32% of the male population are type O secretors; that petitioner Beam was a type O secretor, but the complainant was not; that serological testing is never conclusive, and "[b]y no means is that test, in any stretch of the imagination, conclusive evidence that the Defendant was the rapist;" that additional tests, which the police laboratory had the capability of performing, could have narrowed further the potential source of the seminal fluid found on the complainant's person and clothing; and that such tests were not performed in this case because "we have a very severe budget crunch in the State and we have very severe understaffing, [with the result that] only the minimal amount of work is possible to do in any given case."

On cross-examination Mrs. Day testified that she was aware of the existence of biochemical testing procedures and enzyme testing procedures that "could eliminate a great many potential suspects" and "frequently do." Mrs. Day testified that she was not familiar with the technique of running such tests, and that no such tests were run in this case.

After Mrs. Day and the jury had been excused, the prosecutor noted that he had requested a bench conference "just before I asked Mrs. Day about the comparison of the blood typing with the samples and the Defendant's blood ... at which time I asked Defense Attorney if she intended to go into this blood typing method. She indicated she did." The prosecutor explained that notwithstanding an appellate decision treating such testimony as more prejudicial than probative, "I began to go into it because Defense Attorney had already mentioned it in opening statement in front of the jury. So I felt that it was fair for me to ask some questions about it...." The prosecutor requested permission to put this statement on the record, and defense counsel responded thus:

"I don't mind. He stated the situation fairly. It is an essential part of my defense, the lack of additional testing and the fact that so many people do have O positive blood."

The prosecutor tried to deal with this defense in final argument, broaching the topic by saying "[l]et's dispose of the notion that we don't have a case if we haven't shown the Defendant's blood-type was the type that was found down to the last detail...." The prosecutor's argument continued as follows:

"[A] lot of times I think this can be confusing because it ... somehow sounds as if we're trying to prove that he's the rapist because his blood type matches, but that's not the case at all. That is not true.

"Why?

"Well, first you can never prove that somebody is the rapist by means of blood typing because it can't get that specific. It can't get that detailed. We can say, for instance, in this case, the Defendant has Type O blood and * * * [t]he Defendant is a secretor and Type O blood was found in the fluid; therefore he could have been the donor. He could have been. * * * But it doesn't come anywhere near to proving that he's the man. * * * Out of fairness rape victims are regularly taken to hospitals to be examined, seminal fluid, if found, is examined and is compared with the blood type of a Defendant to see if its possible to scientifically eliminate the Defendant. Therefore, any evidence of blood typing really would come in as part of the defense case more logically. But since it's done routinely, the prosecution routinely offers that witness as a witness for the defense to cross examine, and that was done in this case.

"And what came out of the cross-examination? We came nowhere near proving through that evidence that the Defendant is the rapist and he cannot be eliminated. * * * Other tests could have been run. Maybe one of them would have eliminated the Defendant. Well, I suppose you can argue, you now ought to find the Defendant not guilty because the prosecution did not do everything it could have done to try and prove the Defendant didn't do it. But you see, if you do that you're twisting it around a little badly. You're twisting it around until you're putting the whole burden of trying to prove not only the Defendant's guilty, but the Defendant is innocent, on the prosecution, and our system really isn't setup that...